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How Democrats Should Vote on Gorsuch

This week’s Senate hearings on President Trump’s supreme court nominee, Neil Gorsuch, have deeply divided the nation. Democrats are understandably upset that Merrick Garland, President Obama’s nominee wasn’t even considered by a Republican Senate. Yet in the face of a Republican majority, the Democratic party’s options are limited. On one hand, Democrats could use the same tactics that Republicans used during the waning months of President Obama’s second term and refuse to vote in favor of Gorsuch’s nomination. On the other hand, Democrats could consider Gorsuch’s nomination and confirm him to high court.

Briefly, it’s important to note the parliamentary process that is required to confirm Gorsuch. Senate debate has been opened and hearings have begun. In order to have a vote on Gorsuch’s appointment, the senate must first vote for cloture, or the end of debate. It takes 60 votes in the senate to end debate, but once debate is ended, Gorsuch’s confirmation only requires 50 votes.

The Democratic party currently holds 46 seats in the senate to Republicans’ 54. That’s enough votes to block cloture, but not enough votes to block Gorsuch from being confirmed once debate has ended. If senate Democrats unilaterally oppose Gorsuch’s nomination by refusing to vote for cloture, they’ll give Republicans a taste of their own medicine, but they also risk a change in Senate rules. In the face of unilateral opposition, Republicans may change cloture rules and only require 50 votes for cloture, meaning that they can end debate and nominate Gorsuch with only 50 votes. Republicans can change this rule with only 50 votes.

The Democratic Party is currently divided on how to handle Gorsuch’s nomination. A vocal portion of the party wants Democrats to force Republicans to consider a change in senate rules, banking on a small minority of Republicans, 5 senators, to resist changing senate rules, indefinitely delaying Gorsuch’s nomination. However, if there isn’t enough Republican opposition to this rule change, then Gorsuch will be nominated with 50 senate votes and cloture rules will remain forever changed.

This change has longstanding consequences that adversely affect Democrats in the short-term. Three justices, liberals Stephen Breyer and Ruth Bader Ginsburg and swing vote Anthony Kennedy, are over the age of 75 and likely to retire soon, possibly during President Trump’s first term. If cloture rules are changed, Democrats lose a powerful tool for resisting President Trump’s future Supreme Court nominees, which will drastically swing the composition of a now moderate court to a very conservative court if confirmed.

So what should Democrats do? They don’t have many options. If they don’t resist Gorsuch’s nomination, they let the destructive obstruction of Senate Republicans go unopposed. If they do resist Gorsuch’s nomination, they risk creating a much easier process for confirming Supreme Court nominees, making it easier for the Court to swing conservative. Despite these two lose, lose options, Senate Democrats do have one powerful, if symbolic, course of action.

Senate Democrats should unilaterally vote in favor of cloture and unilaterally vote against Gorsuch’s confirmation.

While this move is purely symbolic, it’s important to note that there is nothing Democrats can do to prevent Gorsuch from being confirmed. If they oppose Gorsuch, he will likely be confirmed by the elimination of the 60 vote threshold for cloture. The unilateral vote for cloture affirms support of senate rules, both the 60 vote threshold for cloture and the standard that a President’s Supreme Court nominees get a fair senate hearing and confirmation vote. Yet the unilateral resistance to Gorsuch signals support for Merrick Garland, President Obama’s nominee to fill the current Supreme Court vacancy.

This move sends a powerful signal to the nation that politicized obstruction to Supreme Court nominees will not be tolerated. Constitutional process must be followed and the Court must function as it’s intended to function, with 9 justices. In the future, this broad display or support for process will encourage senators to follow through with hearings and confirmation votes as The Constitution intends and minority parties will have a powerful tool for resisting unacceptable nominees.

Democrats will take a loss on Gorsuch’s confirmation, but they could hand The Constitution a big win.